21 September, 2021

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UNHRC Resolution: A Welcome Move To Uphold Accountability & Rein In Sri Lanka 

By Thambu Kanagasabai

Thambu Kanagasabai

In this article some of the Resolution’s vital recommendations can be analyzed in the face of Sri Lanka’s rejection and withdrawal from them.

It is a well known fact that the Recommendation welcoming the resolve of Sri Lanka to seek a political settlement to bring out lasting peace is battling for life and death, as the said resolve has dissipated and surviving as a political slogan for all political parties or for political mileage and electoral gains. 

The 5th Para of the Resolution deals with the prime responsibility of a state to respect and ensure the freedom of enjoyment of human rights and fundamental freedoms of its entire population. However, Sri Lanka is an exception to this rule. as these have remained as the monopoly of the majority Sinhala people particularly Government supporters including ruling members while fear, insecurity, discrimination and marginalization being the monopoly of Tamils and Muslims. 

The 7th Para has conspicuously omitted to mention the 20th Amendment to the Sri Lankan’s constitution which has entrenched a dictatorial President with full impunity paralysing democratic governance and independent oversight of key institutions. 

The 8th Para calls upon the Government to fulfil its commitments on the devolution of political autonomy including the effective functioning of North and East provincial councils. This recommendation is still unimplemented as Sinhalese based polity is vehemently opposed to the provincial council system due to suffering from paranoia. It is learnt that the proposed new constitution will completely do away with this provincial council system of administration in Sri Lanka. 

The 14th Para emphasizes the importance of a comprehensive approach to dealing with the past [JUDICIAL AND NON JUDICIAL MEASURES] to ensure accountability, to serve justice, provide remedies and avoid the recurrence of human rights violations. 

It can be stated that these recommendations will remain as a kicking agenda on Sri Lanka, as in the face of an entrenched culture of impunity prevailing in Sri Lanka since 1958 in all spheres of political actions for acts of abuses and crimes and will remain entrenched in any UNHRC resolution.

It is to be noted that only a handful of Security personnel have been convicted from 1958 for violent crimes committed against the civilians and even convicted criminals are pardoned and freed to roam free like the Army Sergeant Sunil Ratnayake who was found guilty for the murder of eight civilians in Mirusuvl, Jaffna and has been sentenced to death by the Colombo High Court. This act by the President is making a mockery of the judicial system and accountability. 

The 15th Para stressed the importance of an independent, impartial and transparent mechanism to redress past abuses and violations. This is a constructive and much needed one, but the million-dollar question is where, when, how and by whom this recommendation can be fully implemented to achieve its objectives. To obtain an impartial, independent and transparent mechanism in Sri Lanka is not a reality as in Sri Lanka impunity is anathema to any Government when dealing with crimes allegedly committed by state security forces, ministers or officials. For example, the President is an alleged war criminal is clothed with full impunity confirming it’s entrenchment.

The 16th Para deals with the responsibility of each state to comply with human rights laws and International Humanitarian Laws and where applicable to prosecute those responsible for gross violations of the said above laws. As far as Sri Lanka, these laws are complied with more in breaches than in implementation as it has engaged in the violation of both laws since 1958 with impunity and non prosecution of those responsible. As such this recommendation will continue to remain intact with a full life term. To call for prosecutions of the alleged war criminals to be initiated by those who are alleged to have committed the war crimes etc. is like knowingly marrying a sterile woman to produce a baby.

The second one calling upon Sri Lanka to implement the recommendations made by the Office of the UN High Commissioner will maintain its status quo with no interruptions as this has been confirmed by the Foreign Secretary Jayanth Colombage who stated that “Even if we lose in the UNHRC nothing will happen in Sri Lanka” along with the statement of the Foreign Minister Dinesh Gunawardena who said “Allegations are politically biased and are false allegations”. 

Recommendation No. 3: requesting Sri Lanka to ensure effective functioning  of Missing Persons [OMP] and Office for Reparations will continue to remain frozen and possibly leading to their demises with the passage of time without any progress and follow up action for the already issued reports of OMP Commissioner with the fate of about 15,000 reported victims of enforced disappearances possibly for ever remaining unresolved and shrouded with secrecy and undisclosed for the affected and the concerned parties. 

Recommendation No 4: calling for comprehensive accountability process for all violations and abuses by the Sri Lankan Forces and LTTE will also be met with stony silence and inaction as in Sri Lanka accountability process is loathed and shunned to shield the impunity of Security Forces alleged to have committed war crimes etc.

Recommendation No 5: This Recommendation has irrefutably confirmed the lack of faith and trust in any democratic mechanism in Sri Lanka to uphold accountability as any or all State Commission dealing with accountability issues affecting Tamils, Muslims and non Buddhists do not possess any value and credibility to provide the required remedies for the victims of Human Rights violations.

Recommendation No 6: This is a welcome and confidence building one as it requested the UN High Commissioner to collect, preserve and analyze evidences relating to Human Rights violations and abuses and related crimes to advance accountability, analyze and preserve information and evidences to devolve possible status for future accountability process for UNHRC crimes and international humanitarian law crimes to support the victims and survivors and relevant judicial and other proceedings including member states with competent jurisdiction.

This recommendation relating to evidence is a vital one to initiate a judicial process backed by strong evidence for prosecution. Besides, the said evidence and information will enable any state which has accepted the Universal Jurisdiction to successfully prosecute persons alleged to have committed war crimes etc. 

Recommendation No. 7: This Recommendation is the most down to earth one which confirms the following which prevails in Sri Lanka: 

1. Signs of a deteriorating situation of human rights over the past years.

2. Acceleration of militarization of civilian and government functions.

3. Erosion of independent judiciary and key institutions involved in problems of human rights.

4. Ongoing impunity and political obstruction of accountability for crimes for both present and past involving state machinery.

5. Increased marginalization of Tamil and Muslim communities. This acknowledges the pre-existing marginalization of Tamils and Muslims for a very long period. 

6. Arbitrary detention, torture, cruel and inhuman treatment or punishment.

7.  Risk of recurrence of policies and practices for the rise of past grave violations.

All of the above alleged by UNHRC in short have reinforced the total failure of Sri Lanka in the fields of human rights and accountability. 

The Recommendation calling for the review of the Prevention of Terrorism Act [PTA[ as usual is treated with contempt by the Government while this PTA is implemented with full force and vigor. For example, a PTA regulation has been recently used to detain persons under rehabilitation for two years or more without any chance for release. 

In conclusion, it has to be stated that the most glaring and inimical omissions in the UNHRC Resolution are:

[a] Referral of Sri Lanka to the International Criminal Court [ICC] nor the express mention of Independent International Impartial Mechanism [IIIM] as advocated by UNHRC groups. UNHRC High Commissioner and human rights activists. 

[b] The omission to mention genocide or even genocidal crimes carried out by Sri Lankan security forces.  

The genocidal agenda including structural genocide against the Tamils which was initiated in 1948 is an open book as the commissions of those crimes have been reported and revealed ny UN Rapporteurs, UN Human Rights High Commissioners and other human rights groups and human rights activists. 

Without any referral to the International Criminal Court and without an IIIM, accountability and justice have received a step-motherly treatment inflicting the victims with more wounds while opening up channels of escape and evasion for the alleged war criminals. The ultimate outcome of the Resolution is well known as it has been pre-emptively rejected and withdrawn by Sri Lanka. It is nothing but naive and foolhardy to expect Sri Lanka to implement this Resolution when it has successfully delayed earlier Resolutions for five and a half years and finally rejected them on March 21, 2021.

Above all, the victims demand justice without delay and UNHRC, UN and Security Council owe the duties and responsibilities to deliver it, if not they will face possible backlash and revival of militancy as a choice which UN and International Community should note without any hesitation. 

In this respect, it is hoped that any geo-political and economic interests of core members must not outweigh and take priority before the application of human rights, accountability and justice for the victims of war crimes. The option to exercise universal jurisdiction and imposition of sanctions is always at the disposal of a nation and should be exercised without delay as they

do not warrant any resolution of UNHRC or UN.

However, Sri Lankan Minister of Education is moving a Bill in Parliament to “Ensure that Military Officials cannot be prosecuted by entities outside the country”. How far this move will succeed is anybody’s guess as no state can pass a Bill against another sovereign state compelling it to not to resort to universal jurisdiction, an international legal norm which has been endorsed by more than 125 countries in the world. 

In this respect US Secretary of State Antony J. Blinken’s statement is relevant.

“UN Resolution must ensure that accountability and institutional reform in Sri Lanka remains a priority in the international stage”. 

*Thambu Kanagasabai, LLM {London] Former Lecturer in Law; University of Colombo, Sri Lanka. 

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Latest comments

  • 5
    2

    The United States has not ratified the authority of the ICC or ICJ to commit and charge or indeed take any punitive action against members of their military who have been deeply complicit in crimes against humanity in Iraq, Afghanistan and elsewhere, including state terror against the countries in Indochina during that war, to mention just a few examples. Israel, another state deeply complicit in ongoing genocide is free to expand at will, and to exterminate any Palestinians who might stand in their way. It also practices genocide in an ongoing, blatant manner. The UNHRC is toothless to stand up for those poor people. However, as Sri Lanka is a puny little minnow in comparison, the UN bodies see fit to dictate terms. Sri Lanka lacks a credible justice system; it is unreliable and heavily partial to governments in power. No justice can ever be served by settling “domestic issues” through internal mechanisms. However, independent arbiters (retired judges) from neutral states in Africa and Asia in a UN body should take the state to task for its gross transgressions in human rights from all rebellions from the 1971 uprising, 1989-90 uprising and indeed the 27 year civil war where both parties committed atrocities.

    • 3
      1

      US did not commit genocide against their own citizens.
      LTTE was a product of Sinhala Buddhist Government’s state terrorism, war crimes, rape and torture and thus, Indra Gandhi armed the LTTE to struggle for freedom and independence.

      Corrupt Indian officials collaborated to Sri Lanka against the Tamils and they too have to be at the ICC on alleged genocide. India will crack sooner or later as Tamil Nadu is waking up and Sri Lanka become sucked by China with large amount of debts and Sinhala areas will become a colony of China;

      • 1
        0

        SS,

        You are wrong on many counts.

        Ever heard of native Indians? If that is not genocide nothing is.
        The UNHRC resolution this time drops genocide, war crimes, etc. Read it. Also read Wigneswaran’s article.
        India did not commit any war crimes in SL. IPKF is much loved in SL’s north.
        If China colonizes SL, China will not discriminate. All areas. China’s construction boom requires limestone and Jaffna peninsular has best limestone.
        Tamil Nadu is not going against India. They learned the lesson in 2009.

  • 1
    1

    “In this respect, it is hoped that any geopolitical and economic interests of core members must not outweigh and take priority over the application of human rights, accountability and justice for the victims of war crimes.”
    Mr. Kanagasabai, there is no possibility at all of India and Japan adopting such a principled stand when it is time to cast a vote in the UNHRC on imposing sanctions on Sri Lanka for committing war crimes, HR violations, dictatorial governance, etc. These two countries will never compromise on their geopolitical, commercial and trade interests. The days when India was looked up to as the spiritual leader of the world are long gone! Now it is crass commercialism and opportunism that they practice.

  • 3
    1

    A Great article with full of facts, detailed information for the international community to act;

    Sri Lanka leaders are big time liars with false promises, failed Law enforcement and Judiciary system, Political interference is everywhere, Second worst Forced Disappearances on earth, Accused War criminals in power, Militarization of Civil administration and Social work, Army illegally occupying Tamils lands, Military intimidating, bullying, attacking civilians while denying Justice. How long UNHRC International Community and Powerful nations continue to watch banana republic Sri Lanka runs like a China’s colony, ill-treating it’s citizens? Sri Lanka can be invaded militarily by the UN UNHRC UNSC for it’s alleged genocide against the Tamils at anytime if Sri Lanka continue to fail or investigate seriously and deliver Justice!

    India’s weakness, alleged collaboration to Tamils genocide and failure helped Sri Lanka become a close ally and partner of China that is leading in many fronts except in human rights, Justice, Freedom, etc. If China wins the hearts of the Tamils, India will be in a precarious position.

    • 2
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      Agree SL leaders are liars and have fooled Tamils since 1947. It is totally foolish for Tamils to beg political solutions from SL leaders after getting nothing for begging for 73 years. They will never give any political solution. Fact.

  • 1
    1

    Dreaming!

    SL will retaliate by having its own war crimes investigation and a separatism investigation and punish the convicted. SL already have these laws.

    This is a never-ending saga.

    Only solution is 3 nations in one island. Sinhala Only Elam, Tamil Elam and Muslim Elam and relocate people.

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